Articles

Workers’ Compensation: Fitness for Duty Exams following Work Injuries

By:
Attorney Barry A. Dratch

A scenario often arises in Workers’ Compensation claims in
which an injured worker is out of work for a period of time, and then is
cleared to work by the authorized physician, either in a light duty or
sedentary duty capacity. That employee
attempts to return to his job, but finds the employer has some concerns about
taking him back to work. These concerns
include that the employee appears to be experiencing a medical condition that
potentially impairs the ability to adequately perform his or her job
responsibilities. The Employer is
further concerned that the employee creates a risk of further harm to his or herself
and to other employees. Under these circumstances, the employee is often asked
to undergo a Fitness for Duty examination.

A Fitness for Duty
exam is a medical examination of a current employee to determine whether the
employee is physically or psychologically able to perform the job after a work
injury. Fitness for duty examinations are a tool utilized by employers
to ensure employees are either capable of performing the essential functions of
their jobs or they are not a significant risk to the health and safety of
others.

Failure to pass a Fitness for Duty examination, in some
circumstances, can lead to a negative job action, including termination from
employment. Based on the possible negative action based on the results of the
examination, the question is raised, as to under what circumstances an employer
can subject the injured worker to a Fitness for Duty examination.

Employers have an affirmative duty to provide a safe working
environment for employees. According to
the Occupational Safety and Health Act of 1970, the employer “shall furnish to
each of his employees, employment and a place of employment which are free from
recognized hazards that are causing or are likely to cause death or serious
physical harm to his employees.” The
negligent retention of an unsuitable employee becomes a potential liability to employers.
Working alongside an employee who is unfit to perform his job duties, or who is
psychologically unstable, can be a threat to other employees in the
workplace.

In addition to the danger caused by working near a worker
that is physically unfit to perform his position, there is also the threat of
injury or worse by working alongside an employee that is psychologically
unstable. Workplace violence is a significant concern for employers and
employees. Employers, in these circumstances, often must take proactive
measures to ensure a safe work environment for their employees. These measures
may include requesting a psychological Fitness for Duty examination for an
employee the employer believes poses a direct threat to other employees.

Although
an employer may have legitimate concerns about allowing the employee to remain
at work, refusing to allow the injured worker to work potentially violates the
“perceived or regarded as disabled” protections of the Americans with Disabilities Act (ADA). Under certain circumstances, the ADA does allow employers to assess a
current employee’s fitness for duty through a medical examination without
running afoul of the law’s perceived or regarded as disabled protections so
long as the examination is job-related and consistent with business necessity.
In other words, the exam cannot be used as a way to assess whether the
employee has a disability or what the severity of the medical condition may be
but may be utilized to obtain disability-related information designed to help
assess whether the employee can safely and properly perform his or her job
responsibilities.

This standard will generally be met if the employer has a
reasonable belief that:

a) the
employee’s condition may prevent the employee from performing the job’s
essential functions; or b)the
employee poses a direct threat to his or her own safety or the safety of
others.

The
employer’s belief has to be based on facts, not on stereotypes or assumptions
about the employee’s condition. If,
however, the employee’s behavior and conduct did not give the employer
legitimate cause for concern, and nothing suggests that the injured worker is
unable to do his or her job safely, the employer would have difficulty
justifying such an exam. The employer
may not simply assume that anyone with a mental disability is by definition
dangerous or incapable of performing the essential functions of his job. However, an employer who has legitimate,
factual reasons to be concerned about the worker’s ability to do his or her job
without undue risk, based on that employee’s behaviors and statements, will
likely prevail.

In the recent case, decided on January 25, 2016, In the Matter of Paul Williams, Township
of Lakewood, No. A-0341-15T2, the
Superior Court of New Jersey, held that a New Jersey employer is permitted to
give an employee a fitness for duty examination in only limited
circumstances. The Court found that for
a psychological or medical fitness for duty examination to be permissible under
the ADA, the examination must be job-related and consistent with business
necessity. The EEOHC has defined
job-related and consistent with business necessity as when “an employer
has a reasonable belief based upon
objective evidence that:

1)an
employee’s ability to perform essential job functions will be impaired by a
medical condition; or2) an
employee will pose a direct threat due to a medical condition

A direct threat is defined as “ a significant risk of
substantial harm to the health or safety of the individual or others that
cannot be eliminated or reduced by
reasonable accommodation.”

An employer must reasonably believe through direct
observation or reliable information received from credible sources that the
employee’s perceived medical condition is affecting his/her performance or the
employee poses a direct threat.

In another recent case decided in the U.S. Court of Appeals for the Fourth Circuit, Coursey
v. University of Maryland Eastern Shore, the Court stated .

“A business necessity must be based on more than ‘mere expediency’
and will be found to exist where the employer can ‘identify legitimate, non-discriminatory
reasons to doubt the employee’s capacity to perform his or her duties”

Under
these guidelines, an employer could require a fitness for duty examination when
it has first-hand knowledge of an employee’s medical condition, has observed
concerning behaviors that relate to performance of the employee’s job duties,
and can rationally and reasonably attribute those concerns to the medical condition.

Based on the foregoing, a Fitness for Duty examination is
not appropriate in all workers’ compensation cases in which an injured worker
attempts to return to work. The employer
must have a reasonable belief based upon objective evidence that an employee’s
ability to perform essential job functions will be impaired by a medical
condition an employee will pose a direct threat due to a medical
condition. If that is not the case, the
employer will not be required to undergo this examination. As the results of
the exam may jeopardize the injured worker’s employment, it is advised that
before an injured work submits to a Fitness for Duty examination, an injured
worker, through his workers’ compensation attorney, must make the determination
that the employer has met these guidelines.